United States vs. Phillips, No. 06-5139 (10th Cir. 2006)

 Annotate this Case
Download PDF
F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS November 8, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court U N ITED STA TES O F A M ER ICA, Plaintiff - Appellee, v. No. 06-5139 (N. D. Oklahoma) M ICH AEL A NTH ONY PHILLIPS, (D.C. Nos. 06-CV-254-HDC and 02-CR-133-HDC) Defendant - Appellant. OR DER DENY ING CERTIFICATE O F APPEALABILITY * Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. M ichael Anthony Phillips seeks a certificate of appealability (COA) to appeal the district court s denial of his application for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1) (requiring COA to appeal denial of habeas relief). In his application M r. Phillips argued that his sentence is unconstitutional under United States v. Booker, 543 U.S. 220 (2005), and that he received * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ineffective assistance of counsel when his trial attorney failed to object to his sentence on constitutional grounds. The district court entered judgm ent against him and denied his request for a COA. W e deny a COA and dismiss the appeal. M r. Phillips was convicted of possession of a firearm by a convicted felon on M arch 5, 2003, and was sentenced to a prison term of 65 months on June 16, 2003. W e affirmed his conviction and sentence on April 13, 2004, see United States v. Phillips, 94 F. App x 796, 803 (10th Cir. 2004) (unpublished opinion), but the U nited States Supreme Court vacated the judgm ent and remanded the case in light of Booker. On remand we engaged in plain-error review because M r. Phillips had not argued in district court that his sentence was unconstitutional. See United States v. Phillips, 133 F. App x 481, 483 (10th Cir. 2005) (unpublished opinion). W e affirmed the sentence, observing that there is no basis for us to assume Phillips would receive a lesser sentence if he w ere resentenced under a discretionary sentencing regime in which the district court is required to consider the guidelines when it exercises its discretion. Id. at 484 (internal quotation marks and brackets omitted). On M ay 11, 2006, M r. Phillips filed his § 2255 application in the United States D istrict Court for the N orthern District of Oklahoma. A COA will issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This standard requires a demonstration that . . . includes showing that reasonable jurists could -2- debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court s resolution of the constitutional claim was either debatable or wrong. Id. M r. Phillips first argues that a four-level sentence enhancement violates his Sixth A mendment rights under Booker. But on direct appeal we already determined that he is not entitled to relief on this claim. See Phillips, 133 F. App x at 483 84. Absent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255. United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). Reasonable jurists could therefore not debate the district court s denial of this claim. M r. Phillips next argues that he received ineffective assistance of trial counsel because his counsel failed to object to his sentence as unconstitutional. To prevail on an ineffective-assistance-of-counsel claim, M r. Phillips must show that his counsel s representation fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984), and that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different, id. at 694. [W]e have -3- rejected ineffective assistance claims where a defendant faults his former counsel not for failing to find existing law, but for failing to predict future law and have warned that clairvoyance is not a required attribute of effective representation. Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (internal quotation marks omitted). The district court noted that M r. Phillips had been sentenced even before certiorari was granted in Blakely v. Washington, 542 U.S. 296 (2004), the forerunner to Booker, on October 20, 2003. See Blakely v. Washington, 540 U.S. 965 (2003). For his attorney to anticipate Booker at the time of his sentence would have been a remarkable feat; failure to do so was hardly objectively unreasonable. Reasonable jurists could not debate the district court s denial of this claim. See Slack, 529 U.S. at 484. W e DENY M r. Phillip s application for a COA and DISM ISS the appeal. ENTERED FOR THE COURT Harris L Hartz Circuit Judge -4-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.